May 14, 2000

A Closer Look at Five Cases That Resulted in Executions of Texas Inmates

By RAYMOND BONNER and SARA RIMER

James Beathard
Executed 12/9/99

James Beathard
Executed 12/9/99

James Lee Beathard received the death
sentence for his role in the 1984 murder of
Gene Hathorn Sr., 45, his wife, Linda Sue, 34,
and their 14-year-old son, Marcus, while
they were watching television in their
mobile home outside Groveton, a small town
in East Texas.

There was no physical evidence to link
Mr. Beathard to the crime -- no
fingerprints, no footprints, no blood. After
giving investigators several different
versions of what happened on the
murderous night, Mr. Beathard finally
admitted he had been at the mobile home,
that he had accompanied Gene Hathorn Jr.
on what he thought was a drug deal. When
Mr. Hathorn began shooting his family, Mr.
Beathard said he ran into the woods and hid.

Mr. Beathard was convicted largely on
the testimony of Gene Hathorn Jr., who had
wanted his family killed in order to collect a
modest inheritance; after the murders, he
discovered he had been written out of his
father's will.

At Mr. Beathard's trial, Mr. Hathorn
testified that he had stood outside the trailer
and fired a blast through the window with a
shotgun; that had killed his father. Then,
Mr. Hathorn -- who hoped that the state
would go easier on him if he helped convict
Mr. Beathard -- told the jury, Mr. Beathard,
24, a quiet, pot-smoking man who worked at
the state mental hospital and had no
experience with guns and no record of
violence, had gone inside, brandishing a
semi-automatic rifle and a semi-automatic
pistol, and had finished off the victims.

"Hathorn might be a cold-blooded killer,
but there hasn't been any evidence in this
courtroom that says he is a liar," the
prosecutor, Joe L. Price, told the jurors. "He
is telling the truth." Mr. Beathard was
convicted and sentenced to die.

Then, several months later, Mr. Price
tried Mr. Hathorn, who testified only at the
punishment phase of his trial, hoping to
avoid execution. Now Mr. Price in speaking
to the jurors said that if they believed he
was telling the truth, "I'm a one-eyed
hunting dog."

In his cross-examination of Mr. Hathorn,
a man with a violent past and experience
with guns, the prosecutor ridiculed the
notion that Mr. Beathard, and not Mr.
Hathorn, had gone inside and killed the
family.

"O.K., and here was this ol' boy that had
never shot that pistol before, was not near
as familiar as you with weapons, going into
a house he had never been in before in his
life, to attack two
people that had some
advance warning that
he was coming," the
prosecutor said to Mr.
Hathorn. "Does that
seem a little bit
strange to you, Gene?"
Mr. Hathorn was also
convicted and
sentenced to die. He
remains on death row.

A year after the
trial, Mr. Hathorn recanted his testimony.
He said that he had acted alone, that Mr.
Beathard had been present but that he had
hidden in the woods and had not
participated in the killings. Based on this,
Mr. Beathard's lawyers asked for a new
trial. But the Texas Court of Criminal
Appeals turned down the request because a
criminal defendant has only 30 days after a
judgment is entered against him to present
new evidence that might justify a new trial.

That 30-day period in Texas is longer than
the 21-day deadline for the introduction of
new evidence in Virginia, but it is still one of
the shortest time periods in the country.
Many states have no deadline.

In a recent interview on death row at
Livingston, Tex., Mr. Hathorn did not want
to talk about the case. He put most of his
answers "off the record," even one on
whether he still stuck to his recantation. He
left no doubt, however, that he had been the
one to go inside the trailer.

Sixteen years after the Beathard trial,
Mr. Price, the prosecutor, is still uncertain
about what happened on the night of the
crime.

"I'll be honest with you," he said,
talking in his office in Groveton. "I've
vacillated on that one over the years." But
he said that it did not matter what roles Mr.
Hathorn and Mr. Beathard had played that
evening since both were present -- under
Texas "law of parties" they were equally
guilty -- or even that Mr. Hathorn may have
lied on the stand. "Under Texas law my duty
is to seek justice, and there is no question in
my mind that these two people murdered
the family," Mr. Price said.

Not everyone agrees that justice was
served.

"Beathard should not have been put to
death," said Mr. Burwell, a parole board
member who voted with two others to have
Mr. Beathard's sentence commuted to life
in prison. Mr. Burwell explained why by
getting out the Texas Code of Criminal
Procedure and reading Article 2.0.1: "It
shall be the primary duty of all prosecuting
attorneys, including any special
prosecutors, not to convict, but to see that
justice is done." He made a copy and
handed it to a visitor. He had underlined the
section, and double-underlined the word
"not."

Mr. Burwell believes that overzealous
prosecutors are at the core of the problem
with the Texas criminal justice system. "If
the prosecutor doesn't have integrity, there
won't be justice," he said.
Another member of the board, Linda
Garcia, also voted for clemency. "I don't
believe anything improper happened with
Beathard," said Ms. Garcia, a former
prosecutor. "My doubt is whether he
deserved the death penalty."

Two jurors in the case recalled in recent
interviews that they had been impressed by
Mr. Price -- and less impressed by Mr.
Beathard's court-appointed lawyer. "It
didn't seem to me like he was very
forceful," one of the jurors, Dorothy Cates,
said of Mr. Beathard's lawyer.

Heber Taylor covered the Beathard and
Hathorn trials for The Lufkin Daily News.
Mr. Taylor asked Mr. Hathorn if Mr.
Beathard had fired the shot from outside the
trailer.

"He just snorted in complete contempt,"
recalled Mr. Taylor, who is now editor of
The Galveston Daily News. Mr. Beathard
was too much of a patsy to kill anyone, Mr.
Hathorn told Mr. Taylor.

Steven Losch, a lawyer who does death
penalty appellate work, said that when he
first began working on Mr. Beathard's case
he was uncertain whether he was innocent.
But by a week before the execution, Mr.
Losch had become convinced by Mr.
Beathard's version of events.

"This is the type of case that illustrates
the risk of innocent people being executed in
Texas,' Mr. Losch said.

Mr. Sutton said that Governor Bush "felt
there was no reason" not to execute Mr.
Beathard. A jury had found that he
participated in the murders, the appellate
courts had determined that he had a fair
trial, and there was "no mitigation" that
would warrant not putting him to death, Mr.
Sutton said.

Troy Farris
Executed 1/13/99

Troy Farris

Executed 1/13/99

Three weeks before
Christmas, a young
deputy sheriff, Clark
Rosenbalm Jr., was
murdered, shot twice
with a Magnum .357,
when he chanced upon
a drug deal, on an
isolated road outside
Fort Worth. Troy Dale
Farris, who was part of
the deal, was convicted
of the murder, but the
manner in which the investigation and trial
were conducted left many uneasy, including
a remarkable number of members of the
parole board.

The crime scene was badly trampled by
investigators and onlookers. Sixty-three
photographs of the sheriff's patrol car
disappeared. So did the plaster casts taken
of tire tracks in the area. Marijuana was
found on Sheriff Rosenbalm, but an
investigator flushed it down the toilet, or so
he first claimed.

The investigator was
indicted for perjury and planting evidence.
Then, after Mr. Farris's trial was over and
he was on death row, the indictment of the
investigator was dismissed.

The Court of Criminal Appeals concluded
that "the circumstantial and forensic
evidence offered at trial not only failed to
connect" Mr. Farris with the murder, but it
"also failed in nearly all material respects
to confirm the testimony" of the two key
witnesses against Mr. Farris.

Mr. Farris was convicted largely on the
testimony of a brother-in-law, Jimmy Daniels, who claimed that Mr. Farris had confessed to him, albeit not until a year after
the crime. Mr. Daniels also led police to an
area where he said his brother-in-law had
once fired his Magnum .357 into a tree. The
police recovered slugs, but the markings did
not match those of the bullets that killed the
sheriff.

Moreover, Mr. Daniels's "credibility was
seriously undermined by the fact that" his
testimony before the grand jury had been
inconsistent with his trial testimony, "and,
therefore, inconsistent with" Mr. Farris's
guilt, the Court of Criminal Appeals found.

Nevertheless, the court voted to affirm
the jury's finding of guilt. As a guiding principle, unless the court concludes that a "rational trier of fact" could not have found the
defendant guilty based on all the evidence
before it, the court upholds the jury's decision.

The case bothered members of the parole
board more than just about any other that
has come before them during Mr. Bush's
tenure. Seven members voted for some
form of clemency, either commutation or a
30-day reprieve.

"I had some questions on the fairness" of
the prosecution, explained Daniel Lang, a
Bush appointee to the board, who has a National Rifle Association emblem on his desk
and signed photographs of himself with
Presidents Gerald R. Ford and George Bush
on the walls of his office in Angleton.

Mr. Sutton, the criminal adviser to Governor Bush, said that the governor could have
granted a reprieve, but that he had "looked
at all the facts of the case and chose not to."

David Castillo
Executed 9/23/98

David Castillo

Executed 9/23/98

Clarencio Champion
was stabbed in a
robbery of the Party
House Liquor Store on
North Texas Avenue in
Mercedes, Tex. The
injuries were not fatal,
however, and he was
recovering in the
hospital, when, a week
after the stabbing, he
suddenly developed an
infection and a high
fever, and died.

It turned out that during
surgery, a nine-inch clamp had been left in
Mr. Champion's stomach; Mr. Champion's
widow eventually sued the doctor and the
hospital for malpractice.

But under Texas law, the person who set
the events in motion that led to Mr. Champion's death could be prosecuted for capital
murder, and that helped convict David Castillo, an 18-year-old high school dropout
from Illinois, who had drifted down to South
Texas. During Mr. Castillo's trial, the doctor
testified that the leaving of the clamp inside
Mr. Champion had been for the best because, he said, it prompted him to go back in
and clean the wound.

There was no direct evidence linking Mr.
Castillo to the crime.

About an hour after the robbery, Mr. Castillo appeared at a friend's home and
washed his hands at an outside faucet. The
police tested it for blood. "It could not be determined whether the blood was human or
not," the Texas Court of Criminal Appeals
said.

Mr. Castillo, who had pleaded guilty to another robbery-stabbing committed a month
before the Party House crime, lacked the
means for a strong defense. The state gave
him $500 for an investigator. The trial court
turned down Mr. Castillo's lawyer's request
for an additional $600. The court ruled that
there was no legal obligation to provide Mr.
Castillo with the additional money.

Rob Owen, a death penalty appellate lawyer with the Austin firm Schonemann,
Roundtree & Owen, said that an adequate investigation would have required $5,000 to
$10,000.

Mr. Sutton, Governor Bush's criminal adviser, said it was difficult to know what it
would have cost for a good investigation 17
years ago. He added, "We do everything we
can to put up enough money to represent
these guys."

A critical witness against Mr. Castillo
was Pedro Garcia, who was himself a suspect because he had worked across the
street from the liquor store and knew Mr.
Champion's pattern of going to and from the
bank with money.

At the time of the crime, Mr. Castillo was
living with Mr. Garcia and his family in a
public housing complex. Mr. Garcia testified that when Mr. Castillo came home late
on the night of the robbery, his first words
as he came though the door were, "I did it."
Mr. Castillo did not explain what it was he
had done.

The police searched Mr. Garcia's two-bedroom apartment. They found nothing.
But the next day, his wife, Lucinda, found a
bloody T-shirt and two money bags in a closet, and called the police.

The jurors took only 45 minutes to find
Mr. Castillo guilty. They might not have
been so sure if Mr. Castillo's lawyers had
found Pedro Garcia's uncle, Oscar Garcia.

In a recent interview in his modest home
in Mercedes, Oscar Garcia said things that
might have led jurors to question Pedro
Garcia's credibility. There was deep hatred,
Mr. Garcia said, between the Garcia and
Castillo families.

Lucinda Garcia, 39, talked about the case
in the four-room house in Mercedes where
she is raising four of her children.

"David, he never, ever admitted to it,"
she said. "To this day, I wouldn't be sure he
did it."

At the punishment phase of Mr. Castillo's
trial, his sister and brother wanted to testify. But they could not afford to travel to
Texas from their homes in the Midwest. And
Mr. Castillo's lawyers did not ask the court
for money to help them make the trip. Mitigating witnesses are essential if a jury is to
be persuaded not to give a convicted murderer the death sentence.

The character witnesses who did take the
stand were not adequately prepared.

"Neither one of the lawyers told us what
they were going to ask us, or what kinds of
things they wanted us to say," David Castillo's father, Juan Castillo Sr., said in an affidavit filed as part of his son's unsuccessful
state habeas petition. "I think I must have
done more harm than good because I didn't
know what to say."

It took the jury half an hour to vote the
death sentence for Mr. Castillo, a sentence
that Mr. Sutton, the Bush adviser, said was
fair and supported by the case record.

David Spence
Executed 4/3/97

David Spence

Executed 4/3/97

David Spence was
executed in connection
with the rape and
torture murders of two
17-year-old girls and
the murder of an 18-year-old boy in Waco.
He received death
sentences in two trials
for the murders.

Mr. Spence, a roofer
with a history of
substance abuse, was
accused of a murder-for-hire killing that
went awry, in which the three victims died.
Muneer Deeb, a convenience store owner,
was also charged and sentenced to death in
the case. But he received a new trial and
was acquitted in 1993. Mr. Deeb died last
November of liver cancer. He had
steadfastly maintained that neither he nor
Mr. Spence had anything to do with the
killings.

The original police homicide investigator,
Ramon Salinas, acknowledged in the
appeals process that he had serious doubts
about Mr. Spence's guilt. In a sworn
deposition given to Mr. Spence's lawyers in
1993, Marvin Horton, a former Waco police
lieutenant who was involved in the case,
said, "I do not think David Spence
committed this offense."

The prosecution built its case against Mr.
Spence around bite marks -- a state expert
said that bite marks on the body of one of the
girls matched Mr. Spence's teeth -- and
jailhouse snitches, both of which can be
highly unreliable forms of evidence. Mr.
Spence was already in prison, serving a 90-year sentence for aggravated sexual abuse
of an 18-year-old man, when he was indicted
for the Waco killings.

Two of the six jailhouse witnesses who
testified at trial subsequently recanted, saying they had been given cigarettes, television privileges and alcohol, and one of them
had been allowed conjugal visits with a girlfriend, in exchange for their accusations
against Mr. Spence.

Mr. Spence's post-conviction lawyers
from the now-closed Texas Resource Center
organized a blind panel study in which five
experts -- odontologists -- said the bite
marks could not be matched to Mr. Spence's
teeth.

Mr. Sutton, the governor's criminal justice adviser, said the verdict was fair and
the death penalty was justified.

With Governor Bush running for president, and the Texas death penalty system
under heavier scrutiny, one of Mr. Spence's
post-conviction lawyers, Raoul Schonemann, says ruefully that Mr. Spence is receiving more attention now than he did
when his lawyers were fighting to save his
life.

"David certainly wanted us to persist in
trying to bring out the truth," Mr. Schonemann said. "I've always been willing to answer questions. But I feel very conflicted.
It's competing with my time for our people
who are living."

Odell Barnes
Executed 3/1/00

Odell Barnes
Executed 3/1/00

Odell Barnes admitted to robbery and
rape, and acknowledged that he was a crack
addict. But he went to his death maintaining
that he had not raped and murdered Helen
Bass.

The lawyers who handled Mr. Barnes's
final federal appeals, Mike Charlton, Philip
Wischkaemper and Gary Taylor, were so
certain of his innocence that they spent a
good portion of their own money
investigating his case.

But like all death row inmates, once Mr.
Barnes had entered the post-conviction
phase, the burden was on him to prove not
just that he was innocent, but that there had
been constitutional errors in his case. It is
extremely difficult to prove either one.

Mr. Barnes's two court-appointed trial
lawyers had done almost no investigation,
Mr. Charlton said. They had not hired any
scientific experts to look at the blood and
semen that the prosecution said linked Mr.
Barnes to the murder. And they only
interviewed a few witnesses, he said.

One of Mr. Barnes's trial lawyers had
handled only one capital murder trial. The
other lawyer had also handled one previous
case, as a prosecutor.

Police said Mr. Barnes had killed Ms.
Bass, a 42-year-old nurse who was his
mother's best friend, by bludgeoning her
with a rifle butt and another heavy object,
stabbing her and shooting her in the head.
Semen found inside Ms. Bass matched that
of Mr. Barnes. A fingerprint on a lamp,
which police said may have been used to
beat her, also belonged to Mr. Barnes. In addition, one dime-sized spot of blood on a pair
of Mr. Barnes's coveralls, which the police
had seized from his brother's car, matched
that of Ms. Bass.

Mr. Sutton said the state's case against
Mr. Barnes was strong. But Mr. Charlton
and his partners challenged the state's case
by establishing that
Mr. Barnes had had a
consensual sexual relationship with Ms. Bass.
Mr. Barnes had told his
lawyers that from the
beginning, but they had
apparently not listened, Mr. Charlton
said.

Bob Burtman of The
Houston Press conducted an investigation of
the 1991 murder, and the newspaper published a lengthy article in January that
raised doubts about Mr. Barnes's guilt. Mr.
Burtman found a letter Mr. Barnes had
written in 1994 to his state habeas lawyer,
saying that he had not raped Ms. Bass, that
they had had a sexual relationship. Mr.
Barnes said they had had sex two or three
days before the murder.

In addition to their sexual relationship,
Mr. Barnes helped Ms. Bass with repairs
around the house, and was a frequent visitor. That could have explained the fingerprint on the lamp, Mr. Charlton said. And
while the prosecution had maintained that
Ms. Bass had bought the lamp a week before

her death -- an assertion that went unchallenged at trial -- Mr. Barnes's final team of
lawyers learned from Ms. Bass's son that
the lamp was seven or eight years old.

The tiny spot of blood on Mr. Barnes's
coveralls was analyzed by Kevin Ballard, a
leading forensic chemist who is a consultant
to the F.B.I. The state had already run DNA
tests confirming that the blood was Ms.
Bass's. Mr. Ballard concluded that it contained extremely high levels of citric acid,
which is used in vials to preserve blood. He
said that the blood had either been planted
or dropped accidentally on Mr. Barnes's
coveralls.

In addition to the new forensic evidence,
Mr. Charlton and his partners interviewed
new witnesses who contradicted all the testimony put on by the state at trial. The lawyers also found that the Wichita Falls Police
had botched the crime scene investigation,
failing, among other things, to preserve a
shoe print found at the scene and to test
blood smeared all over the house.

The federal and state courts both refused
to allow Mr. Barnes's lawyers to present
their new evidence. Finally, the United
States Supreme Court refused to intervene.